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Today is the 45th anniversary of the decision in Loving v Virginia, which legalized interracial marriage in the US. With Perry v Schwarzenegger (Prop 8.) and DOMA heading to SCOTUS this year, let us hope we will soon have marriage equality for all. Even though the cases don’t have the perfect name Loving did.

After we completed the main hour of the podcast, we continued our conversation and the guys over at “A Matter of Doubt” have been kind enough to put it up as a bonus clip. This is where we get into the things that I am most interested in, LGBT issues, argument, and humanism. I almost sound like I know what I’m talking about occasionally in here, even.

Yes, I’m pretty vitriolic online, and I am willing to call people wrong and be kind of… we’ll go with “emphatic”. Somewhat dogged. Win the war of attrition. But in person, in real life, in real interactions, people are worth more than ideas. People deserve to be treated well, people deserve to be loved for who they are, they deserve to be accepted. You can have any opinion you want about their beliefs, but at some point you have to be willing to say, you know, I disagree with you and that’s not the most important thing about you. We’re all worthy, we’re all equal, we’re all human. And that’s the foundation of equal rights, that’s the foundation of why we care about the LGBT issues, it’s the foundation of why we think atheists should be treated the same. And at some point you have to be willing to stop arguing.

I gave a “sermon” at the UU in Columbia at the end of September and they’ve gotten around to putting it up on their website. If anyone is interested in listening to me talk about rhetoric, emotions, and Prop 8… here’s yet another opportunity!

This is the paper I wrote as a reference to what I was going to talk about at Dragon*Con, which was itself an expansion on the paper I submitted to TAM9. What I did at D*C was longer, more conversational, and a bit sillier than this paper is, but it will give you the basic thrust of what I talked about.

My background is in film and media and I’m currently getting my PhD in Mass Communications. I’ve worked in Hollywood, I’ve worked in South Carolina, and other horrible places in between. Film is a powerful medium because it speaks not only in images but also in emotions, and emotions are what I want to talk about today.

When I think about films that I saw long ago, I rarely remember the plots or the character names, though I often remember the actors. What I mostly remember are the moments of extreme emotion in the film. I remember the shower scene in Schindler’s List, the reuniting of the sisters in The Color Purple, the death of Leonardo DiCaprio in Titanic, the pain and horror of Sara when she is reunited with her father and he does not recognize her in A Little Princess. We are drawn into movies for many reasons, but they tend to stick with us because of their emotional power.

Movies use a lot of tricks to get this to happen, they use music and lighting, they use editing and writing, they use actors that are famous and that we’re already emotionally attached to, and they use the close-up. Think about how close you have to be to someone to see them as close as you see someone in a close-up. Most people only ever see their family and their lovers that close. The art of false intimacy! I say this merely as a preamble, to show you how easily one can get caught in emotions and to show that emotional manipulation is something that any filmmaker, and furthermore anyone who is trying to engage an audience, should be using.

Last year at TAM, Phil Plait (who I love!) gave a talk about how to successfully argue, and his broad theme was Don’t Be A Dick. As a smart ass, I took this rather personally — I’ve mostly moved on, but I’ve spent the year trying to distill why exactly it got under my skin and it is this: nice doesn’t always work and mean is an effective tool when wielded correctly. Being a dick triggers an emotional response, but not always the one you’re looking for, it is important to use emotion with intent.

What Phil Plait was absolutely right about was this: the skeptic movement doesn’t always take emotion into account when it argues, and it should. This doesn’t necessarily mean being a dick, of course, one can very easily use emotion without invoking dickitude, but being a dick is a tool (lol) in an arsenal of emotional weapons. This doesn’t mean it’s the right tool for every job, in many circumstances being a dick is not going to get the reaction you’re looking for, but that doesn’t mean it never will.

There are two things I want to cover today: why dickishness can work and why emotions are important. These things are interrelated – insults are almost always emotional, and not necessarily negative. An insult brings about different emotional responses in the insultee, the audience, and the insulter themselves. Emotions are not easy and are less scientifically certain than logic, but they are essential to making good arguments.

To bring in someone else’s opinion on the issue, I’ll refer to Aristotle. There are three essential parts of any rhetoric: logos, ethos, and pathos – logic, ethics or integrity, and emotions. I think skeptics really have the first one covered; logic will never be our weak link. Ethos we struggle a little bit more with, not because we’re not ethical, but because oftentimes we are perceived as unethical, particularly the more atheistic your arguments are. This is slowly changing, the more we get out there and spread the message the more people realize we aren’t eating babies. Emotional arguments are an important way to rehabilitate the image of someone, though they are also easily used to undermine someone’s character.

We often see this in ad hominem attacks, these attacks undermine credibility without actually talking about what someone is arguing. To most humanists, and I would guess to most people in the audience, the ad hominem is generally immoral because personal traits shouldn’t be relevant to an argument. And, in terms of being strictly logical, that’s true.

Except, that’s not always emotionally true. When Ted Haggard is railing about the immorality of gay sex and is then engaging in it, that sort of hypocrisy should be exposed. This is a form of ad hominem tu quoque (you also), it remains logically fallacious, just because Ted Haggard had gay sex doesn’t mean his argument that gay sex is bad is incorrect, it just means he’s a hypocrite. But most people care if someone’s a hypocrite a lot more than they care about logic.

This is at least partially why there’s been a large push in the movement towards charity and embracing ideas beyond the traditional scope of skepticism. It’s almost an attempt to rehabilitate the ethos of the skeptics. The Foundation Beyond Belief, for example, does do a lot of good for the world, but it also promotes an image that gives atheists more credibility. In the same vein, there’s also a push from many in the movement, such as Jamila Bey, Greta Christina, Debbie Goddard, and others, to approach more meaningful topics that maybe fall outside the “traditional” range of skeptic issues. How can we develop credibility among people who are not in any way served by us? Why don’t we address issues that are important to people who aren’t a part of the movement, like drug laws and the insane number of black men in prison? Like abstinence only education and the wage gap? I admit that I am very strongly in favor of this, and am therefore biased.

Finally, there is pathos, the emotional side of things. Obviously, all three, logos, ethos, and pathos, are interrelated, but when you focus exclusively on logic you’re still impacting ethos and pathos, you’re just not doing it intentionally. It’s easy to understand how skeptics drop the pathos part of arguments, skepticism is about rationality after all, but my main argument here is that it’s completely irrational not to take emotion into account. Have facts, by all means, have all of them you can find, be smarter than the other guy (or gal), but use emotion to your advantage.

The trouble is that people are not rational. It’s the reason we have trouble winning lawsuits, and it’s the reason that Separation of Church and State groups like the SCA are moving away from Establishment Clause cases, which argue abstract philosophical ideas, towards equal rights cases, which are about people being mistreated. You have to take into account how people already feel AND get people to respond to your arguments emotionally.

Using emotion doesn’t mean lying, it means rationally taking into account the fact that humans don’t respond solely to logic. That’s what makes us human, and we should be glad of it, not try to suppress it. And if we know it’s there, we’re foolish not to take advantage of it, because our opponents are already masters of emotion and therefore have a huge advantage. With facts you have what’s wrong, but with emotion you have why someone should care.

One of the greatest dicks of all time, Cicero, was the king of rhetoric. Cicero is an interesting case study, despite his Machiavellian emphasis on how pliant people are when you’ve appealed to their emotions (or perhaps we should say Machiavelli was Ciceronian?), he is also recognized as one of the fathers of the humanist movement. Civic humanism, the devotion to a public life of trying to make the world a better place for the people who have to live in it, is modeled almost entirely on Cicero’s own dedication to education and ethical politics. Cicero believed that man is set apart by reason and speech, which allows for the formation of society.

Cicero recognized an important distinction that we should recognize as well, when you’re arguing in public, you’re not simply arguing with a person, you’re putting on a display for an audience. This is true regardless of the medium. Obviously I am giving a display to an audience here (Ed. Note: pretend you’re at Dragon*Con), but I could easily insult someone in the front row and make you the audience hearing my insults. I could also insult you and make you both the insultee and audience. This is true of debates that go on onstage, of conversations you see on television shows like Bill O’Reilly or The Daily Show. This appeal to the audience is true even when things are recorded without an audience for broadcast, and true for any argument in any public space.

This is true when arguing on YouTube, or on a blog, or on an online forum. An argument in these places isn’t just meant for one person, though it may be aimed primarily at them, it is aimed also at convincing other readers of your point. It is perfectly possible to make a mean argument that the supposed target will completely ignore but that will convince others that you are right.

Among the many speeches Cicero gave, many were devoted to tearing apart the character of Mark Antony. These speeches were not meant for Antony, they were meant for the audience – the senate and the public, who proceeded to consolidate their support for Cicero. Insult worked here to speak truth to power, but primarily to weaken support of the power in question.

Insults are also entertaining, how else explain the popularity of House MD and Yo Mamma jokes? People enjoy insults as comedy, as clever, as signs of intellectual superiority. An insulter is not necessarily a bad guy – insensitive perhaps, but often the bringer of truth in an entertaining way. When House calls someone a liar, he does so with the kind of flourish that makes you like him – we like him because he’s confident (to the point of delusion, perhaps) and because he is a dick. He is not afraid to speak the truth, preferably in the form of a putdown, and preferably against the prevailing “good manners” of the day. To someone’s insistence on humility, he says:

Humility is an important quality. Especially if you’re wrong a lot… Of course, when you’re right, self-doubt doesn’t help anybody, does it?” (#109)

The entertainment purpose here shouldn’t be underestimated. If you think of the rise in attention to atheists and the massive rise in attendance to skeptic or atheist conferences in the past few years, you can attribute a lot of that to the increase in how entertaining atheists are. To get media exposure one doesn’t need to be right, unfortunately, they just need to be interesting – viewers equal dollars, and almost all of the media has a bias towards whatever makes them more money. Insults are entertaining, and therefore get coverage. And coverage means awareness, and awareness means people can’t pretend we don’t exist – whether they agree with us or not.

I know there’s been a big hullabaloo over the tone atheists take on billboards and so forth, but how much coverage has that earned atheists in the news?

Thomas Conley’s “Toward a Rhetoric of Insult” has brilliant insight and analysis on the cultural impact and importance of insults. One of his most interesting insights is that for an insult to work, the people in the audience have to share the same worldview and values as the insulter – an insult is inherently stating that the speaker is morally or otherwise superior and that anyone in the room, including the insultee, should hold to the same moral standards that the insulter is referencing.

He writes the worst English that I have ever encountered. It reminds me of a string of wet sponges; it reminds me of tattered washing on the line; it reminds me of stale bean soup, of college yells, of dogs barking idiotically through endless nights. It is so bad that a sort of grandeur creeps into it. It drags itself out of the dark abysm of pish, and crawls insanely up the topmost pinnacle of posh. It is rumble and bumble. It is flap and doodle. It is balder and dash.

He is appealing to the idea that everyone thinks that bad English, wet sponges, and barking dogs in the middle of the night are bad things indeed. Even Harding himself would have to agree.

Insults can also be powerful motivators, think of coaches and drill sergeants, or to take a less warlike example, think of sororities and fraternities, which put people through hazing before joining. This creates, strangely, a very tight bond between the insulters and insultees.

To quote Thomas Conley directly:

[O]ne side of insult calls for shared values and beliefs, rests on a kind of intimacy between insulter and the one being insulted, and can be a way of reinforcing social bonds, not just asserting alienation. Insults can be viewed as indirect celebrations of public virtue and as an implicit recognition of the ubiquity of hierarchy. And insults can be a method of motivating people to do their best-what, I suppose, we might call “the noble insult,” like the “noble lie” in Plato or Quintilian. Finally, insults can be a powerful mode of truth-telling.

There is, perhaps, a huge gap between a troll on a website and Christopher Hitchens, though I suspect many Christianists would accuse Hitchens of trolling them. But the spectrum of dicks doesn’t mean that you either have to be Hitchens or you can’t be a dick, it means that context matters (of course!) and that you should at the very least be aware of what you’re trying to accomplish through the way you’re speaking. This is the art of rhetoric generally, but there is a place for being a dick within that art, precisely because of the skillful way in which dickishness can elicit emotional responses.

So, we’re back to the broader point, emotions good! Use them!

People respond to personal stories, people respond to emotional appeals, and if that doesn’t feel right to you, all you have to do is look at Prop 8. Dave Fleischer did an in-depth case study of the Prop 8 campaign, and what follows is an analysis of the importance of emotion in the arguments, and how the gay marriage side failed to emotionally connect with voters.

The gay movement and the atheist and skeptic movement have a lot in common. Like LGBT, atheists and skeptics are usually an invisible minority in the United States. We face a culture that is subtly and not so subtly biased against us, and we face the fact that people are always shoving their woo down our throats. Like LGBT, no one has to know we’re atheist, we can remain “in the closet”. And the more we do so, the more the untruths and false stereotypes about us are allowed to persist. I say this not to encourage people to out themselves, though they should, but because this is the emotional groundwork laid before we even get to the table. It’s an uphill battle, but we already know what’s there.

For those who don’t follow gay rights issues, I’ll give a brief background of Prop 8. In 2000, a ballot initiative called Prop 22 easily won the popular vote and was created as a law, which for these purposes is less effective than a constitutional amendment. In 2004, San Francisco began offering marriage licenses to same-sex couples, which led to a long series of court battles and in 2008 the California Supreme Court said that same-sex couples had the same right to marriage as heterosexual couples, making Prop 22 invalid. Gay marriage in California began in June 2008, but on the ballot that following November was a constitutional amendment that would take that right away.

Prop 8 was a constitutional amendment for the California Constitution that said that marriage was only between a man and a woman. California, unlike the US as a whole, only requires a simple majority to amend its constitution. The campaign was the most expensive campaign in the history of propositions, and second only to the Presidential election in 2008. The gay rights side failed, and the amendment was passed. 18,000 gay couples got married in the window between the overturning of Prop 22 and the enforcement of Prop 8.

The No on 8 campaign was, in many ways, a horrible mess for the LGBT crowd. Not because it wasn’t well-funded, even though their opposition had a seemingly endless supply of money courtesy the Mormon Church, No on 8 was outspending the anti-gay marriage crowd 2:1, even 4:1 in the final week of the campaign. Their problem was that they let the Yes on 8ers have the most emotional capital in the game. For weeks, Yes on 8 had the major advantage of having better emotional messages without facing effective counterarguments.

The shocking thing is that Yes on 8 didn’t even come up with a SINGLE emotional appeal that hadn’t been used thousands of times before this campaign, the gay rights crowd could have easily guessed what they were going to do ahead of time, and most certainly should not have been surprised when those same Anita Bryant tactics were used once again. There had been many previous campaigns headed by NOM, the Catholic Church, and the Mormons against gay marriage in the decade preceding Prop 8, and the anti-rights crowd used the same tactics they always had.

No on 8 had resources, but their ads weren’t effective because they didn’t use pathos. One of their biggest ads was called Conversation and it was two women looking at photos saying that they weren’t too fond of gays, but taking away “fundamental rights” seemed sort of wrong.

This ad was so ineffective, it actually got pulled early. Why? Because it was boring. And because it made no arguments to support its assertion that gay marriage was a fundamental right. There was no emotional appeal, just a moral appeal to something people weren’t sure was moral or not.

The most effective ads the Yes on 8ers used played on the fear of the voters, and most particularly on the fear of parents. In fact, their most effective ad was called Princes, and it was a child coming home from school telling her mother about how she learned at school that a prince could marry another prince, and she could marry a princess. Then a man says “Think it couldn’t happen here? It already is.”

This played on the subtle message that gay marriage was going to pervert childhood in some way. That’s all they had to do, was just imply it. There’s a similar bias against atheists — all someone has to do is hint at it for it to be negative. And the worst part is that these horrible stereotypes just aren’t true. This ad pulled the support of some 500,000 parents who had been on the No on 8 side — half a million parents switched their votes. Had they voted the other way, No on 8 would have won.

The ad that most changed public opinion back towards LGBT equal rights came too late in the campaign, and it was just a direct rebuttal to the Princes ad — it unfortunately came out weeks later because the No campaign had been unprepared, but it did come out.

The numbers show that the ad was effective, so even if someone catches you unprepared with an emotional message, you can still reply. It’s not nearly as effective as defining the emotional stakes of the discussion yourself, but it’s so easy to get out on front on these issues when you know that they will be coming.

What this means for skepticism and atheism is this: If you were promoting skepticism on a billboard, which would be the stronger message: “Homeopathy is minuscule amounts of questionably useful substances diluted beyond a trace” or “Homeopathy kills, it’s not medicine, it’s fraud”.

We’ve even got the clever “Homeopathy, there’s nothing in it” stickers, right? I love these! They’re delightfully nerdy, and if you’re a big fan of Moles then you’ll love it. But it doesn’t resonate with most people and why should it? It’s just not that important in the scheme of things, unless you point out that it causes actual harm, not just that it violates all the known laws of physics.

If we protest saying “Under God” in the pledge, no one cares. It just feels petty to people, even though we’re right. If we talk about a kid being bullied by teachers for not saying it, on the other hand, people are more likely to care. Think the “It Gets Better Campaign.” If you can point to harm, particularly to children, that works. Scientologists, Christian Scientists, Jehovah’s Witnesses, Jenny McCarthy and her anti-vaxxers all deny potentially life-saving medical treatments to children. Talk about perfect targets for insults.

Psychics and Faith Healers, two categories of charlatans I can’t tell apart, have had some of this leveraged at them. James Randi has effectively used the emotion of humor to reveal just how pathetic people like Uri Geller are, teaching through mockery — which is kind of dickish, just to bring this full circle. Earlier this year, atheist and mentalist Derren Brown released a special about faith healing, humorously skewering these people as frauds, grifters and scoundrels (and not the fun Han Solo type).

He exposed their tricks – the facts of the case, if you will – but he focused on emotion as well. These healers aren’t just bilking money from little old ladies, they’re bankrupting them. They’re killing them and blaming their illness on lack of faith. They’re not just tricksters, they’re not just giving false hope, it’s much worse than that.

We need more of these exposures. We need more personal stories of people who have been taken advantage of and who have been hurt by pseudoscience and irrational beliefs. We need to be getting more involved in the community, to be doing public acts of charity, to be engaging with issues that matter to people who aren’t skeptics, who aren’t atheists. We need to be thinking about how to use emotion, we need to recognize that we’re using it whether we intend to or not, and we need to recognize that there are different tactics and, most importantly, room for people who have different tactics.

It’s hearts and minds, right? We’ve got the facts to win their minds, now let’s not be afraid to use emotional rhetoric to win their hearts as well.

I haven’t written about the legalization of gay marriage in New York. It is a big deal, obviously, but it didn’t have any sort of direct impact on me or anyone I know. Unlike Prop 8, which went down while I lived in California and which went on for a very long time, the decision in New York was quick and not where I lived.

But it doesn’t just matter in New York. It matters everywhere — even in South Carolina.

Today in The State newspaper, South Carolina’s big paper, there was a marriage announcement for two men who met in South Carolina and married in New York. On top of that, it’s an interracial gay couple. As a friend on Facebook said, he’s sure the Baptist churches are blowing up The State’s phone lines.

The couple met in Columbia, S.C., in February 1984. Gregory and William were both commissioned officers in the U.S. Army. Best men for the wedding were the couple’s two sons, Dudley Smith Hasty and Baker Smith Hasty.

They have been together since before I was born. Over 27 years together, 2 children, one working and one a homemaker, both veterans and unable to marry until this summer. And still in a marriage that can’t be recognized federally or in the state that this announcement was made and where they met.

Anyway, congratulations to the Smith Hasty family and thank you for making SC a little bit more interesting and broadminded today!

This will be brief because I’m on my lunch break, but today in California they are deciding whether Judge Walker’s decision on Prop 8 should be thrown out because he’s gay and therefore can’t be a judge on gay rights as well as determining whether the tapes of the trial should be locked up from view or allowed to be released.

The gay rights crowd is arguing that of course you don’t throw out a decision because a judge has human traits — wouldn’t a straight man be biased for straight people? It would never end. They are also arguing that there is no possible harm in releasing the tapes and keeping them under lock and key is absurd and retarded. They probably won’t say it precisely like that.

The anti-gays crowd, who KNEW THAT WALKER WAS GAY BEFORE THE TRIAL AND NEVER ASKED HIM TO RECUSE HIMSELF, are arguing that the gays can’t make legal decisions if they’re in a relationship and releasing the tapes would make their side look like complete idiots the proponent’s witnesses uncomfortable.

People in an open society do not demand infallibility in their institutions, but it is difficult for them to accept what they are prohibited from observing – Chief Justice Berger

Former Chief Judge Vaughn Walker, who presided over the Prop 8 trial, recently used some of the video that was taken during the case as part of a lecture. The Proponents, aka supporters of Prop 8/opposers of gay marriage, immediately took great offense and sent what was essentially a cease and desist order that demanded the return of all the copies of the tapes, Walker's and anyone else who had them.

In response, Ted Olson and David Boies, the legal tour de force trying to lift the gay marriage ban, filed a request that the tapes be unsealed and released to the public. After all, the trial is a matter of public record and the transcripts are freely available.

Originally, the trial was going to be broadcast live, but the Proponents felt like this might scare some of their witnesses away, and so they demanded that it not be broadcast. Judge Walker taped it, but didn't release the tapes, to the great disappointment of the men and women across the country who wanted to see the greatest trial of the greatest civil rights battle of our time.

No one can really blame the Proponents for not wanting to have video footage of just how appallingly awful their defense of Prop 8 was. They want to continue to play the victim here — they want to sell the idea that gay marriage is somehow a violation of religious liberty, rather than being completely the other way round. The video of their disastrous performance would only reveal that they are driven solely by religion and bigotry — and that they aren't even capable of hiding that fact.

Some things that they don't want you to see on television, things that their own anti-equality witnesses did: a witness saying that DADT and DOMA were "Official Discrimination"; that same witness then saying Prop 8 was also discriminatory; Mr. Blankenhorn, their chief witness saying, "I believe that adoption of same sex marriage would be likely to improve the well-being of gay and lesbian households and their children"; Blankenhorn also saying, "We would be more American on the day we legalized gay marriage than the day before".

Well, I mean, no wonder, right? But that's exactly why these things need to be released. People need the opportunity to see how feeble the defense was and to really understand how motivated by religion the campaign against equality was. Not everyone is as nerdy as me and reads trial transcripts because they find them so compelling — video is the medium of our lives, and well do the religious know that since it is the medium through which they sold their hate.

The vast majority of the money and on-the-ground support for the Prop 8 campaign came from the Mormon church, supplemented by the Catholic church. This isn't even money from California, and it's certainly money that ought to take away their tax exempt status. People need to be shown the kind of lies they were telling to get people to vote against marriage equality, the emotional manipulation about children and families, things so blatantly false they might be defended with the disclaimer: "not intended to be a factual statement."

Gay marriage doesn't destroy families, it doesn't destroy children, it really doesn't do much except make some people very happy and give them access to rights that the rest of us take for granted. The trial provided an overwhelming amount of evidence that refusing marriage rights not only hurt gay people, but also hurt the thousands of children of LGBT parents. It hurts these children irreparably, immeasurably, forever. This wasn't in question, gay marriage opponents agreed.

These tapes shouldn't just be released, they should be broadcast on every news channel for weeks to expose just how rotten the argument is against gay marriage. If you've ever questioned why church-state separation is so important, this is why. If conservative Christians (and I include the LDS) hadn't funded the gay marriage ban, it wouldn't be in place, and even they couldn't create enough money to make credible witnesses or a real argument against gay marriage. The monstrous unfairness of the church taking over, infiltrating, and outright buying the political process only to then lie to the public to get their way has got to stop. Not only is it immoral, it is un-American.

1. The stay will not be lifted on performing gay marriages in California. It's been so long since the argument before the ninth, that one might easily have forgotten that we were a hairsbreadth away from allowing gay marriages in California again, which would have been just as well, as there will be no marriages until the case is decided. And probably no marriages until it's gone through the full judicial process, which may be years from now. Justice is by no means swift in this country.

This is not a surprise, though. I would have been shocked if the courts had decided to let marriages go ahead. Despite the fact that there is no harm caused by allowing gay marriage, to admit so would be to tip their hand and to call into question their judicial ruling, so the Ninth can't really get away with supporting a lift of the stay.

2. In super awesome OMG yes news! As you may know, mutli-national gay couples who are married and have their marriages recognized elsewhere, cannot have their marriages recognized in the US thanks to DOMA. This means that people can be married but deported, very much unlike the way heterosexual married couples are treated. Deportations have been halted thanks to the questions about the legality of DOMA.

Confirmation that this policy is now in place nationally is cause for celebration. In many ways this is vindication of a two-decade long struggle by thousands of binational couples, advocates and attorneys. But the fight is not over yet. Many couples, after consulting with experienced immigration attorneys, may decide that this is the proper time to file a green card case. However, DOMA is still the final obstacle for attaining a green card; unless it is repealed or struck down, filing any case with immigration is not without risk. – Lavi Soloway

Yesterday was the presentation of the case to the 9th circuit. Now, it’s not the full 9th circuit, which means that whatever these three judges decide, they may well have to reconvene with the rest of the 9th circuit if whoever loses this round decides to appeal. It’s sort of a weird situation but it appears that, whatever they rule, the loser can then appeal either to the full 9th or to the Supreme Court. If they appeal to the full 9th, they will probably then appeal to the Supreme Court anyway. It all feels a bit futile when you know that it’s going to get appealed all the way up.

The three judges on the panel are, from most liberal to most conservative, Stephen Reinhardt, Michael Hawkins and Randy Smith. Both Reinhardt and Hawkins seemed to agree with Judge Walker’s logic, while Smith seemed to be a bit more on the fence. Even he, a fairly conservative republican, had a hard time with the idea that California had given a right and then taken it away — this led to one of the better lines of the day, in which a judge asked if it would be OK for California voters to reinstitute segregation. Smith did, however, think that promoting procreation and a biological mom and dad family environment was a reasonable rational basis for excluding homosexuals from the instituion.

His biggest problem with the prosecutorial case came with the question of standing. For those not following, the official defendants named in the case refused to defend the law, so several other people joined the lawsuit as Defendant Intervenors. The DI aren’t people who would normally even be allowed to participate, but because no one was defending Prop 8 in California, they were allowed to join the case. The question now is whether they are qualified to be DIs in a federal court.

The answer basically appears to be no, especially since SCOTUS has been tightening restrictions on who can be a DI in federal court over the last couple of decades. The problem Judge Smith has, and I actually agree with him here, is that California has a process that says that the Governor cannot veto something voted on by the people and that, by refusing to defend Prop 8, he’s nullifying what the people want.

So, I don’t think that any of the DI actually deserve standing, but in the absence of an official Defendant, I feel like to respect the legislative process in California, it might be necessary for the 9th court to recognize the DIs in this case.

I posted a flow chart yesterday that explains exactly how convoluted all of this is, but if the 9th Court determines that the DI don’t have standing, and SCOTUS agrees, then Walker’s ruling stands and gay marriage is legal in CA. If it’s determined that the DI do have standing, then it’s a much longer road to a final opinion, but there’s a chance that that opinion will legalize gay marriage nationwide.

By a longer road, I mean a wait for the 3 judges to rule on the constitutionality of Prop 8, then an optional wait for the full 9th court to rule on it, then a wait on SCOTUS to see if 4 judges want to have a hearing, and then finally a wait for SCOTUS to make a final ruling.

Now, in terms of argument, it has never been clearer that the DI simply don’t have one that goes beyond “gay people can have children, but they can’t do it accidentally and, even though there are no fertility requirements on straight people, we think that calling an institution marriage promotes responsible child-rearing, and we don’t think encouraging gays to responsibly procreate is something that marriage should do because they do it anyway.” And, revealingly, the judges asked how wide a ruling that agreed with Walker would have to be — in other words, if they agree that Prop 8 isn’t constitutional, do they then have to say that gay marriage is a right in their jurisdiction? Olson wiggled a bit, saying that that’s what he’s asking for without trying to bind their hands.

Being able to watch this all on live video just underlined how bad the lawyers on the DI side are and how good Boies and Olson are. I know that sounds like a biased opinion, but even ignoring the strength of argument, the DI lawyers stuttered, stammered, and weaseled their way through their arguments, only to be repeatedly called on it by the judges who threw out such gems as:

“Is there anything in the record to indicatate that she has any authority whatsoever?”

“You’re repeating yourself now.”

“If you don’t know the answer, say you don’t know.”

It was painful, but since it was televised, I really hope that some people who weren’t as familiar with the trial got the chance to see just how illogical the DI position is and how eloquent, intelligent and prepared the prosecution is. If you get the opportunity, I urge you to watch it, I will probably watch it again myself. http://www.youtube.com/watch?v=TA_vFjjd3yM

The DI also continue to shoot themselves in the foot by saying things like “the word is the institution,” which just underlines that even if gays had access to everything but the word, they wouldn’t have access to the institution itself. I’ll let Therese Stewart end this, because she is amazing(paraphrase from here):

If the word is the institution, then the argument is just that gays and lesbians would “stain” the institution. The fact that Prop 8 is symbolic, it makes the insult obvious. This is classification for its own sake, and it violates the equal protection clause. Taking these components together, it infers animus.

If we only passed Prop 8 to show that same-sex couples aren’t as good, or as worthy as other couples, then isn’t the equal protection argument plain to see? It reveals the naked schoolyard taunting aspect of Prop 8. Nah-nanny-boo boo, you aren’t as good as me. And frankly, nanny-boo-boo isn’t a valid use of state authority.